NCAT Appeal Panel Decisions Digest Issue 8 of 2025 |
The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue contains links to all the Appeal Panel decisions published in August 2025, as well as summaries of the following cases. |
YQM v Le [2025] NSWCATAP 205: In an appeal of an interlocutory decision of the Consumer and Commercial Division of NCAT, in which leave was granted for the parties to have legal representation, the appellant alleged a denial of procedural fairness. He asserted that the orders were made without an opportunity to be heard, or consideration of objections filed. The appellant further contended that the orders incorrectly recorded “[b]y consent,” when only one order was made on that basis. An Appeal Panel refused leave and dismissed the appeal, noting that the appellant had, by his own account, at least three opportunities to articulate his position regarding the respondent’s application for legal representation and that, irrespective of whether consent applied to one or both orders, the subsequent orders (made without consent), clarified the position. A ground of inadequate reasons was dismissed on the basis that, as a whole, the reasons adequately reveal the basis for the decision.
|
Karhani v New South Wales Land and Housing Corporation [2025] NSWCATAP 201: In an appeal from the Consumer and Commercial Division of NCAT against a termination and rent arrears order, an Appeal Panel refused leave for the landlord to have legal representation. Leading up to the hearing, the landlord advised the Tribunal that the tenant had been incarcerated. Neither party had been represented below, and the landlord had only sought leave to be represented less than a day before the hearing. An Appeal Panel determined that the issues were not complex, and allowing the landlord to have legal representation would create an obvious inequality in both knowledge and NCAT experience between the parties.
|
YMX v Becton Dickinson Pty Ltd [2025] NSWCATAP 193: An Appeal Panel dismissed an appeal challenging a decision by the Administrative and Equal Opportunity Division under the Anti-Discrimination Act 1977 (NSW) (AD Act). The appellant alleged that the respondent used complex supply chains to avoid scrutiny under the AD Act in connection with the alleged unlawful discriminatory decision by its U.S.-based parent company to cease producing a certain medical product. The Appeal Panel upheld the first instance decision, finding that the respondent had not refused to supply goods as defined under the Act, and found no breach of ss 33 or 49M.
|
|
|
1. In what circumstances will leave to appeal from an interlocutory decision be granted? |
YQM v Le [2025] NSWCATAP 205
A Bell, SC Senior Member; D Goldstein, Senior Member
In sum: This appeal concerns an interlocutory decision granting leave for legal representation, purportedly by consent, in the Consumer and Commercial Division of NCAT. The appellant claimed a failure to provide procedural fairness because orders were made without notice, opportunity for submission, or consideration of filed objections. An Appeal Panel rejected these grounds of appeal as on the appellant’s own case, he had at least three opportunities to make his position clear regarding the respondent’s request for legal representation. The appellant also claimed that the orders the subject of the appeal incorrectly stated “[b]y consent”, when only one of those orders was by consent. Whether the consent was in relation to one or all of those orders, the Appeal Panel found the subsequent orders (which were not by consent) clarified the issue, so leave to appeal was not justified. A ground of inadequate reasons was dismissed on the basis that, as a whole, the reasons adequately reveal the basis for the decision.
Facts: On 31 March 2025, NCAT made orders by consent for an adjournment of the hearing, and a second order was made granting leave for the parties to be represented by a legal practitioner. On 7 April 2025, in response to a request for reasons, NCAT set out the reasons for the decision, which included commentary that the “main” submission relied on by the appellant “contains nearly 1000 paragraphs of what he probably imagines to be closely reasoned and irresistible legal argument. It is more than possible that the effect of this kind of presentation in a relatively straight forward tenancy case will be to dazzle a less confident litigant with science. This could lead to the occurrence of a manifest injustice."
Held (Refusing leave to appeal and dismissing the appeal):
(i) The first ground of appeal was based on a failure to provide procedural fairness because orders were made regarding legal representation without notice, opportunity for submission, or consideration of filed objections. The Appeal Panel rejected this ground, finding that “on the appellant’s own case he had at least three opportunities to make his position clear regarding the respondent’s request for legal representation”.
(ii) The second ground of appeal contended that there was a finding without evidence, namely that the second order on 31 March 2025 was marked “[b]y consent” when no consent was sought or given. The Appeal Panel found that, whether it was only the first order was by consent or both orders, the subsequent orders on 7 April 2025 (which were not by consent) re-iterated the grant of leave for legal representation and the reasons for the decision. As the position was corrected by orders of 7 April 2025, the Appeal Panel determined that it was not appropriate for leave to appeal.
(iii) The third and fourth grounds of appeal concerned an alleged failure to provide reasons. The Appeal Panel found that the Member’s reasons as a whole adequately reveal the basis of the decision, namely that the appellant was familiar with legal submissions and the citation of authorities, whereas the respondent was not and that any disadvantage may be alleviated by appointing a legal representative. Insofar as the appellant felt “mocked” in the reasons, the Appeal Panel referred to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR at [22]: “[t]he Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts”, and, while “regrettable”, the language was not sufficient for leave to appeal to be granted.
(iv) The final ground of appeal concerned the error of NCAT in making on order for legal representation despite an explicit direction to apply for leave. The Appeal Panel noted that, while this was strictly correct, there was no error as s 38(4) of the NCAT provides for NCAT to act with as little formality as circumstances permit without regard to technicalities. |
2. Will the Appeal Panel grant leave for a landlord to have legal representation when the tenant is incarcerated and does not consent to the application? |
Karhani v New South Wales Land and Housing Corporation [2025] NSWCATAP 201
P H Molony, Senior Member; Dr K George, Senior Member
In sum: The tenant appealed a termination and rent arrears order, but shortly before the hearing, the landlord informed the Tribunal that the tenant was incarcerated. The landlord and the tenant were not legally represented in the proceedings below. The landlord applied for legal representation less than a day before the hearing. An Appeal Panel refused leave for the landlord to be legally represented, finding the issues were not complex and that granting leave would create an imbalance given the landlord’s NCAT experience.
Facts: Ms Karhani (the tenant) appealed against a termination order made by the Tribunal and an order for payment of arrears of rent (which was temporarily stayed by the Supreme Court). Following two unsuccessful stay applications, the hearing was listed for 13 August 2025. Approximately one week before the scheduled hearing, the New South Wales Land and Housing Corporation (the landlord) emailed the NCAT Registry, noting that the tenant had been incarcerated. Efforts were made for the tenant to appear by audio-visual link (AVL), however, there were no available facilities at the prison. Less than 23 hours before the hearing, the landlord applied for leave to be legally represented, (despite the usual rule that a party is not entitled to be represented without leave outlined in s 45(1) of the NCAT Act) and the Registry sought the tenant’s response. Approximately an hour later, the tenant’s daughter sought an adjournment of the appeal, as, due to the tenant’s incarceration, she was without access to any papers relating to the appeal. On the morning of the hearing, the landlord filed submissions in support of being allowed legal representation, including an attachment showing the tenant’s refusal to consent to such an order. On the papers, and prior to the scheduled hearing time, the Appeal Panel refused the respondent's request for leave to have legal representation. This decision outlines the reasons for that decision.
Held (Refusing the landlord leave to be legally represented):
(i) Prior to the scheduled hearing time, NCAT decided to refuse the landlord leave to be legally represented. The parties were informed of the decision prior to the hearing in an effort to spare the landlord the expense of having a legal representative attend the hearing. The landlord claimed that legal representation would assist the Appeal Panel by providing “fulsome consideration” concerning the jurisdiction of NCAT. The tenant had previously refused consent to legal representation, stating the issues were straightforward and the landlord’s case was weak. The Appeal Panel agreed, finding that the appeal did not raise “new, novel or complex issues of law”. The landlord has numerous employees who regularly appear in NCAT, and it was noted that, should leave be granted, there would be an obvious inequality in both knowledge and NCAT experience between the tenant and the landlord. |
3. Can a company “refuse” to provide goods and services when a product is no longer manufactured by its parent company? |
YMX v Becton Dickinson Pty Ltd [2025] NSWCATAP 193
Dr R Dubler SC, Senior Member; H J Dixon SC, Senior Member
In sum: An Appeal Panel has dismissed an appeal from the Administrative and Equal Opportunity Division that dismissed an application for relief against the respondent under the Anti-Discrimination Act 1977 (NSW) (AD Act). The appellant sought “corporate accountability” for the use of complex supply chains to avoid scrutiny under the AD Act, namely the respondent’s purported decision (made by its United States based parent company) to cease manufacturing certain medical equipment. The Appeal Panel agreed with the findings at first instance, concluding that the respondent did not refuse to provide goods as specified in the relevant statutory provisions. The appellant’s grounds of appeal could not establish contraventions of ss 33 or 49M of the AD Act, and the grounds of appeal were not made out.
Facts: In September 2021, the respondent’s parent company discontinued the supply and manufacture of a 26cm Foley catheter. In February 2023, the appellant attempted to reorder the catheter from a local distributor but was informed that it was no longer available. She claims no suitable alternative exists, especially for women and people with disabilities who require a shorter catheter. The appellant lodged complaints with the NSW Anti-Discrimination Board (ADB) in March 2023, alleging sex discrimination in the provision of goods and services. In December 2023, the appellant lodged another claim with the ADB alleging disability discrimination. The ADB accepted the complaints. The respondent denied that it had discriminated against the appellant, contending that it does not supply products directly to individuals but to distributors and institutions, and the catheter is unavailable because of a commercial decision by its parent company in the United States to cease production. At first instance, NCAT did not accept that there had been a breach of ss 33 or 49M of the AD Act by the respondent.
Held (Refusing leave to appeal and dismissing the appeal):
(i) The first issue at first instance was whether the respondent provided goods to the appellant. NCAT found that the subject of the provision of goods was the business customers of the respondent, not the appellant, and therefore the respondent did not provide any goods to the appellant.
(ii) With regard to the second issue, the Appeal Panel agreed with the reasoning at first instance, namely that the respondent could not have “refused” to provide the catheter because it was no longer manufactured after September 2021 (a decision which was not made by the respondent, but by its parent company) and determined that there was no an error of law. The respondent never supplied the catheter directly to the appellant, rather the respondent supplied distributors from whom the appellant obtained the catheters. The Tribunal correctly recognised that the scope of the provisions in ss 33 and 49M of the AD Act requires a nexus between the provider and the person provided for. |
|
|
The Owners – Strata Plan No 72250 v Nugent [2025] NSWCATAP 183 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President, R Alkadamani, Senior Member Catchwords: APPEAL – whether reasons were inconsistent with orders – whether decision was not fair and equitable or against the weight of evidence- no basis to grant leave |
McNeill v Clarence Valley Council [2025] NSWCATAP 184 Appeal from the Administrative and Equal Opportunity Division Decision of: Armstrong J, President; K Robinson, Principal Member Catchwords: APPEALS – questions of law – Government Information (Public Access) Act 2009 (NSW) – misconstruction of Act – failure to apply correct legal principles – application of wrong legal principles – adequacy of reasons – extent of duty of NCAT to assist self-represented party – no breach of procedural fairness requirements – admission of further evidence – appeal allowed ADMINISTRATIVE LAW – whether government information held by agency – sufficiency of search – excluded information in respect of which there is a conclusive presumption against disclosure – client legal privilege – legal professional privilege – identification of client and privilege holder – consideration of waiver of privilege – Government Information (Public Access) Act 2009 (NSW) Sch 1, cl 5(2) mandatory requirement |
Musumeci v The Owners - Strata Plan No 11583 [2025] NSWCATAP 185 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member; R Titterton OAM, Senior Member Catchwords: LAND LAW – Strata title – whether strata scheme functioning satisfactorily – whether the owners corporation had failed to perform one of its duties – whether to appoint compulsory strata managing agent |
|
|
Houda v Seraphim (Costs) [2025] NSWCATAP 188 Appeal from the Administrative and Equal Opportunity Division Decision of: Armstrong J, President; A Britton, Deputy President Catchwords: COSTS – special circumstances – exercise of discretion to award costs |
|
Secretary, Department of Customer Service v Marino [2025] NSWCATAP 190 Appeal from the Occupational Division Decision of: K Ransome, Principal Member; J Redfern, Senior Member Catchwords: APPEAL – administrative review – home building – refusal of licence – misconstruction of Instrument – constructive failure to exercise jurisdiction – inadequate reasons – procedural fairness |
Casella v Commissioner of Police, NSW Police Force [2025] NSWCATAP 191 Appeal from the Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; J Gatland, Senior Member Catchwords: APPEAL – whether Appellant is a disqualified person under the Firearms Act 1996 (NSW) – consideration of whether an offence against the Crimes Act 1900 (NSW), s 316 is one involving dishonesty |
Grabovsky v Department of Communities and Justice [2025] NSWCATAP 192 Appeal from the Administrative and Equal Opportunity Division Decision of: D Robertson, Principal Member; J Ledda, Senior Member Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – whether Tribunal has administrative review jurisdiction over certain social housing decisions APPEALS – jurisdiction of Appeal Panel of NSW Civil and Administrative Tribunal – whether Appeal Panel has internal review jurisdiction over decisions of registrars concerning the issue of summonses – whether Appeal Panel can grant stays of decisions over which it does not have internal appeal jurisdiction |
YMX v Becton Dickinson Pty Ltd [2025] NSWCATAP 193 Appeal from the Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; H J Dixon SC, Senior Member Catchwords: Human rights – disability discrimination – sex discrimination – no refusal to provide goods |
Southern Pacific Builders Pty Limited v Kelly [2025] NSWCATAP 194 Appeal from the Consumer and Commercial Division Decision of: P Durack, Senior Member; N Kennedy, Senior Member Catchwords: BUILDING AND CONSTRUCTION – construction of clause concerning the fall to waste in bathrooms in the now superseded AS 3740-2010. APPEALS – point of law about construction of clause in an Australian Standard – construction contended for by the Builder rejected – relevance to construction of an article in the ABCB Connect newsletter – appeal dismissed |
YRF v Karnikowski [2025] NSWCATAP 195 Appeal from the Consumer and Commercial Division Decision of: Dr K George, Senior Member; M Tibbey, Senior Member Catchwords: APPEAL – Residential Tenancies Act 2010 (NSW) – duress – unconscionable conduct – new evidence – extension of time – enforcement of settlement |
|
|
Nicholson v Sydney Harbour Escapes Pty Ltd [2025] NSWCATAP 198 Appeal from the Consumer and Commercial Division Decision of: J Redfern PSM, Senior Member; G Burton SC, Senior Member Catchwords: APPEAL – Australian Consumer Law – guarantees in relation to services - duty of care and skill – obligations under contract in relation to unsafe weather – post-hearing evidence – material issues raised – denial of procedural fairness PROCEDURE – summary dismissal and issue of summonses – applications refused |
YMO v YMN [2025] NSWCATAP 199 Appeal from the Guardianship Division Decision of: R Booby, Principal Member; L Organ, Senior Member; F Given, General Member Catchwords: APPEAL – whether appellant demonstrated error on a question of law – whether leave to appeal should be granted |
Nuset Group Pty Ltd v Whitehead (No 2) [2025] NSWCATAP 200 Appeal from the Consumer and Commercial Division Decision of: J Redfern PSM, Senior Member Catchwords: COSTS – s 60 Civil and Administrative Tribunal Act 2013 (NSW) – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – appeal from proceedings at first instance involving Australian Consumer Law claims – unsuccessful stay application – appeal successful – claim for lump-sum fixed costs |
|
|
Sanna Construction Pty Limited v Kelly No 2 [2025] NSWCATAP 203 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; R Perrignon, Senior Member Catchwords: COSTS – costs of appeal from decision of Consumer and Commercial Decision – appeal dismissed – respondent’s application for costs of appeal –special circumstances not required – where respondent was successful in respect of six out of seven grounds of appeal - whether appropriate to make a lump sum order for costs sought – quantification of the lump sum amount |
|
YQM v Le [2025] NSWCATAP 205 Appeal from the Consumer and Commercial Division Decision of: A Bell, SC Senior Member; D Goldstein, Senior Member Catchwords: PRACTICE AND PROCEDURE – representation – section 45 of the Civil and Administrative Tribunal Act 2013 – legal representation – Leave to appeal an interlocutory decision |
Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; EA MacIntyre, Senior Member Catchwords: APPEAL – Administrative Law – Government information – cabinet information – construction of cl 2, Sch 1 to the Government Information (Public Access) Act 2009 (NSW) – principles of statutory interpretation |
Josevski v Imbree [2025] NSWCATAP 207 Appeal from the Consumer and Commercial Division Decision of: P H Molony, Senior Member; N Kennedy, Senior Member Catchwords: APPEALS – procedure – time limits – application to extend time to lodge an appeal – exercise of discretion – reason for delay – prospects of success on appeal – extension of time refused |
Song v Dickson (No 2) [2025] NSWCATAP 208 Appeal from the Consumer and Commercial Division Decision of: Dr R Dubler SC, Senior Member; J Ledda, Senior Member Catchwords: LEASES AND TENANCIES – termination of periodic residential tenancy agreement under former s 85 of Residential Tenancies Act 2010 (NSW) – when termination notices are retaliatory under s 115 APPEALS – utility of internal appeal – whether appeal lacks utility if Appeal Panel cannot provide alternative to remedy abandoned by appellant |
Ashwood v Medlock [2025] NSWCATAP 209 Appeal from the Consumer and Commercial Division Decision of: P H Molony, Senior Member; N Kennedy, Senior Member Catchwords: CONSUMER LAW – Jurisdiction – NSW Civil and Administrative Tribunal Consumer and Commercial Division – Supply of Services - Jurisdiction and powers CONTRACT – contract provided for payment to be postponed until given event – contract terminated when partly performed but before payment due – whether payment for performance accrued and recoverable |
YMP v YND [2025] NSWCATAP 210 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; I R Coleman SC ADCJ, Principal Member; B McPhee, General Member Catchwords: APPEALS - guardianship -leave to appeal - fresh evidence |
|
|
|
DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
